SARANGI RAMACHANDRAIAH Vs. NAGARJUNA GRAMEENA BANK KHAMMAM

JUDGEMENT

(1.) The question falling for decision in this appeal is whether the Labour Court deciding an application under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') can refuse the claim of a reinstated workman for salary of the period from the date of the removal till the date of the judgment in the writ petition in which the removal is set aside, taking the view that such claim of the workmen is not an existing right implementable under the Section. A brief sketch of the facts are that the writ petitioner, who is the appellant before us, was a clerk-cum-cashier of the respondent-bank put under suspension on 13/10/1979 on account of his involvement in a criminal case and subsequently was removed from service on 31/12/1979 without any enquiry having been held. He was acquitted in the criminal case on 27/11/1980 and thereafter filed Writ Petition 6662 of 1980 in this Court claiming reinstatement in service. The writ petition was allowed on 22/02/1983 holding the removal to be illegal and directing his reinstatement but no orders were passed regarding the payment of the back-wages. The appellant was reinstated in service on 28/04/1983 and thereafter made the application under Section 33-C (2) before the Labour Court for the relief of back-wages for the period October 13, 197 9/04/1983. The Labour Court divided the period into three phases, the first being 13/10/197 9/12/1979, i.e., the period of suspension for which period it directed payment of full back-wages less the subsistence allowance received. For the period 1/01/1980 to 2/12/1983 payment of back-wages was refused taking the view as above said. The claim for the back-wages for the period 22/02/198 3/04/1983 i.e., the period intervening the judgment of in Writ Petition No. 6662 of 1980 and the actual reinstatement was also allowed. The decision of the Labour Court was assailed by the appellant in Writ Petition No. 11306/85 but the result having gone against him, this appeal has been preferred. The Labour Court in refusing the claim of the appellant took the view, pointing out that the appellant had not referred to any decision that once the order of dismissal is quashed the employee as a matter of course is entitled to back-wages, that silence in the judgment of Writ Petition No. 6662 of 1980 regarding payment of back-wages suggests that while quashing the order of reinstatement, payment of back-wages can be disallowed. It further held that it is not for the Labour Court to determine in an application under Section 33-C (2) whether back-wages should be allowed in full or part and, if so, to what extent. In simple terms, the Labour Court was taking the view that the amount of back-wages being not a determined figure, an application under Section 33-C (2) was not maintainable.

(2.) The learned single Judge before whom the order of the Labour Court was assailed took the view that the normal rule is that if the employer is found to be wrong as a result of which the workman is directed to be reinstated, the workman whose services have been illegally terminated would be entitled to full back-wages except to the extent he was gainfully employed during the enforced idleness. While saying so, the learned Judge, however, observed :

(3.) When the order of removal from service of an employee is set aside the normal consequence is of not only he being entitled to be reinstated in service but of him to be treated as having ever continued in service since the removal is found to be void in law. As the void order could not have operated adversely against the interests of the person who was visited with it, the order must be taken to have had no consequence upon his service career. That is why, as has been rightly observed by the learned single Judge in his Judgment, the normal rule when order of removal is set aside and reinstatement is directed is the entitlement to the full back-wages subject to deduction of the amount which might have been received by the workman for his having been gainfully employed during the period of his ouster from service. That was the law propounded by the Supreme Court in Hindustan Tin Works v. Its Employees (1978-II-LLJ-474). There has been of course later developments of law in which the entitlement to the full back-wages has been subjected to considerations as to whether a reduction in the amount is necessary because of other supervening circumstances, apart from his gainful employment, like the employee's contribution to the fact of his ouster from service or his getting the benefit of reinstatement merely because of a technical flaw or the like. But that the normal rule, as propounded, has never been doubted. It would hence be necessary, when denial of the back-wages or a portion thereof is sough for, to establish reasons for which the deductions have to be made. The onus of bringing such factors on record would of course lie upon the employer. Once it is understood that an employee whose removal is set aside illegal is deemed to be in service throughout, the objection taken by the Labour Court of the application being not maintainable as it is not in a position to compute the amount of back-wages would not hold good as the employee would undoubtedly be entitled to the back-wages in terms of his continued employment throughout. It is of course true that before the Tribunal the employer may not have the right or the occasion to point out any factors for a reduced entitlement to the back-wages as the application under Section 33-C (2) being in the nature of an execution application the determination of such questions would not be within the scope of it. But once the order on the application is passed, the employer may approach this Court in its extraordinary jurisdiction against the order to plead with justifying factors for reduction of the amount.